Exhibit 4.7
EXECUTION COPY
SIXTH ISSUER PAYING AGENT AND AGENT BANK AGREEMENT
DATED 18TH NOVEMBER, 2004
PERMANENT FINANCING (NO. 6) PLC
AND
CITIBANK, N.A., LONDON BRANCH
AS PRINCIPAL PAYING AGENT
AND
CITIBANK, N.A., LONDON BRANCH
AS AGENT BANK
AND
CITIBANK, N.A., NEW YORK BRANCH
AS US PAYING AGENT
AND
CITIBANK, N.A., LONDON BRANCH
AS REGISTRAR
AND
CITIBANK, N.A., LONDON BRANCH
AS TRANSFER AGENT
AND
THE BANK OF NEW YORK
AS NOTE TRUSTEE
IN RESPECT OF
U.S.$1,000,000,000 SERIES 1 CLASS A ASSET BACKED FLOATING RATE NOTES
DUE SEPTEMBER 2005
U.S.$35,800,000 SERIES 1 CLASS B ASSET BACKED FLOATING RATE NOTES
DUE JUNE 2042
U.S.$34,700,000 SERIES 1 CLASS C ASSET BACKED FLOATING RATE NOTES
DUE JUNE 2042
U.S.$1,000,000,000 SERIES 2 CLASS A ASSET BACKED FLOATING RATE NOTES
DUE DECEMBER 2011
U.S.$35,800,000 SERIES 2 CLASS B ASSET BACKED FLOATING RATE NOTES
DUE JUNE 2042
U.S.$34,700,000 SERIES 2 CLASS C ASSET BACKED FLOATING RATE NOTES
DUE JUNE 2042
(POUND)1,000,000,000 SERIES 3 CLASS A ASSET BACKED FLOATING RATE NOTES
DUE SEPTEMBER 2032
(POUND)35,300,000 SERIES 3 CLASS B ASSET BACKED FLOATING RATE NOTES
DUE JUNE 2042
(POUND)34,200,000 SERIES 3 CLASS C ASSET BACKED FLOATING RATE NOTES
DUE JUNE 2042
[e]750,000,000 SERIES 4 CLASS A ASSET BACKED FLOATING RATE NOTES
DUE JUNE 2042
[e]26,100,000 SERIES 4 CLASS B ASSET BACKED FLOATING RATE NOTES
DUE JUNE 2042
[e]25,300,000 SERIES 4 CLASS C ASSET BACKED FLOATING RATE NOTES
DUE JUNE 2042
(POUND)500,000,000 SERIES 5 CLASS A1 ASSET BACKED FIXED-FLOATING RATE NOTES
DUE JUNE 2042
(POUND)500,000,000 SERIES 5 CLASS A2 ASSET BACKED FLOATING RATE NOTES
DUE JUNE 2042
(POUND)34,800,000 SERIES 5 CLASS B ASSET BACKED FLOATING RATE NOTES
DUE JUNE 2042
(POUND)33,700,000 SERIES 5 CLASS C ASSET BACKED FLOATING RATE NOTES
DUE JUNE 2042
ALLEN & OVERY
ALLEN & OVERY LLP
LONDON
CONTENTS
CLAUSE PAGE
1. Definitions and Interpretation.......................................................................1
2. Appointment of the Agents............................................................................2
3. The Sixth Issuer Notes...............................................................................2
4. Delivery of Definitive Sixth Issuer Notes; Transfers and Exchanges of
Global Sixth Issuer Notes............................................................................5
5. Replacement Sixth Issuer Notes.......................................................................6
6. Payments to the Principal Paying Agent...............................................................7
7. Payments to Noteholders..............................................................................9
8. Miscellaneous Duties of the Principal Paying Agent, the Registrar and Transfer Agent................12
9. Agents to Act for Note Trustee......................................................................16
10. Fees and Expenses...................................................................................17
11. Terms of Appointment................................................................................18
12. Termination of Appointment..........................................................................20
13. Non-Petition........................................................................................23
14. Assignment..........................................................................................24
15. Time................................................................................................25
16. Notices and Demands.................................................................................25
17. Miscellaneous.......................................................................................26
18. Exclusion of Third Party Rights.....................................................................26
19. Governing Law.......................................................................................27
20. Exclusion of Liability..............................................................................28
SCHEDULE
1. Specified Offices of the Agents.....................................................................29
2. Regulations Concerning the Transfer, Exchange and Registration of the Registered
Definitive Sixth Issuer Notes.......................................................................30
Signatories...............................................................................................32
THIS SIXTH ISSUER PAYING AGENT AND AGENT BANK AGREEMENT is made on 18th
November, 2004
BETWEEN:
(1) PERMANENT FINANCING (NO. 6) PLC (registered number 5232464), a public
limited company incorporated under the laws of England and Wales whose
registered office is Blackwell House, Guildhall Yard, London EC2V 5AE
(the SIXTH ISSUER);
(2) CITIBANK, N.A., LONDON BRANCH, acting through its office at 5 Carmelite
Street, London EC4Y 0PA (acting in its capacity as the PRINCIPAL PAYING
AGENT);
(3) CITIBANK, N.A., LONDON BRANCH, acting through its office at 5 Carmelite
Street, London EC4Y 0PA (acting in its capacity as AGENT BANK);
(4) CITIBANK, N.A., NEW YORK BRANCH, acting through its office at 14th
Floor, 388 Greenwich Street, New York, New York 10013 (acting in its
capacity as the US PAYING AGENT);
(5) CITIBANK, N.A., LONDON BRANCH, acting through its office at 5 Carmelite
Street, London EC4Y 0PA (acting in its capacity as the REGISTRAR);
(6) CITIBANK, N.A., LONDON BRANCH, acting through its office at 5 Carmelite
Street, London EC4Y 0PA (acting in its capacity as the TRANSFER AGENT);
and
(7) THE BANK OF NEW YORK, a New York banking corporation whose London
branch address is at 48th Floor, One Canada Square, London E14 5AL
(acting in its capacity as NOTE TRUSTEE).
WHEREAS:
(A) Under the Sixth Issuer Deed of Charge the Sixth Issuer will charge and
assign to the Security Trustee all of its right, title, interest and
benefit, present and future, in, to and under this Agreement and the
other Sixth Issuer Transaction Documents.
(B) The Agents are willing to provide agency services to the Sixth Issuer
and the Note Trustee on the terms and subject to the conditions
contained in this Agreement.
IT IS AGREED as follows:
1. DEFINITIONS AND INTERPRETATION
The amended and restated master definitions and construction schedule signed by,
amongst others, the parties to this Agreement and dated 18th November, 2004 (as
the same may be amended, varied or supplemented from time to time with the
consent of the parties to this Agreement) (the MASTER DEFINITIONS AND
CONSTRUCTION SCHEDULE) and the sixth issuer master definitions and construction
schedule, signed for the purposes of identification by Allen & Overy LLP and
Sidley Austin Brown & Wood on 18th November, 2004 (as the same may be amended,
varied or supplemented from time to time) (the SIXTH ISSUER MASTER DEFINITIONS
AND CONSTRUCTION SCHEDULE) are expressly and specifically incorporated into this
Agreement and, accordingly, the expressions defined in the Master Definitions
and Construction Schedule and the Sixth Issuer Master Definitions and
Construction Schedule (as so amended, varied or supplemented from time to time)
shall, except where the context otherwise requires and save where otherwise
defined herein, have the same meanings in this
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Agreement, including the Recitals hereto and this Agreement shall be construed
in accordance with the interpretation provisions set out in CLAUSE 2 of the
Master Definitions and Construction Schedule and the Sixth Issuer Master
Definitions and Construction Schedule. Any reference in this Agreement to
interest shall, where relevant, be deemed to include a reference to any
Additional Amount payable in respect of the Series 3 Class A Sixth Issuer Notes.
2. APPOINTMENT OF THE AGENTS
2.1 APPOINTMENT
(a) Upon and subject to the terms of this Agreement, the Sixth Issuer and,
for the purposes of CLAUSE 9 only, the Note Trustee, hereby appoints to
carry out each of its respective obligations on a several but not joint
basis:
(i) the Principal Paying Agent as principal paying agent in respect
of the Sixth Issuer Notes;
(ii) the US Paying Agent as paying agent in the United States in
respect of the Sixth Issuer Notes;
(iii) the Agent Bank as agent bank for the purpose of determining
interest payable in respect of the Sixth Issuer Notes;
(iv) the Registrar as registrar for the purpose of recording the
holders of the Sixth Issuer Notes; and
(v) the Transfer Agent as transfer agent in respect of the Sixth
Issuer Notes.
(b) The Sixth Issuer appoints the Agent Bank acting through its Specified
Office as its agent in relation to the Sixth Issuer Notes for the
purposes specified in this Agreement and in the Conditions.
2.2 ACCEPTANCE OF APPOINTMENT BY PAYING AGENTS, REGISTRAR AND TRANSFER
AGENT
The Agents accept their respective appointments as agent of the Sixth
Issuer and, for the purpose of CLAUSE 9 only, as agent of the Note
Trustee in relation to the Sixth Issuer Notes and shall comply with the
provisions of this Agreement.
2.3 ACCEPTANCE OF APPOINTMENT BY AGENT BANK
The Agent Bank accepts its appointment as agent of the Sixth Issuer for
the purpose, inter alia, of calculating the rate of interest on the
Sixth Issuer Notes in accordance with the Conditions and this
Agreement.
3. THE SIXTH ISSUER NOTES
3.1 REG S GLOBAL SIXTH ISSUER NOTES AND DOLLAR GLOBAL SIXTH ISSUER NOTES
The Reg S Global Sixth Issuer Notes and the Dollar Global Sixth Issuer
Notes shall be in substantially the form set out in the FIRST SCHEDULE
to the Sixth Issuer Trust Deed and shall, in each case, be executed
manually or in facsimile by an Authorised Signatory of the Sixth Issuer
and authenticated manually by or on behalf of the Registrar on the
Sixth Issuer Closing Date.
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3.2 DEFINITIVE SIXTH ISSUER NOTES
(a) Each Definitive Sixth Issuer Note shall:
(i) be in substantially the form set out in the SECOND SCHEDULE to
the Sixth Issuer Trust Deed;
(ii) be printed, lithographed or typewritten in accordance with all
applicable legal and stock exchange requirements;
(iii) bear a unique certificate number; and
(iv) be executed manually or in facsimile by an Authorised Signatory
of the Sixth Issuer and authenticated manually by or on behalf of
the Registrar and, in respect of the Series 3 Class A Definitive
Sixth Issuer Notes, be executed manually or in facsimile by an
Authorised Signatory of the Sixth Issuer and authenticated
manually by or on behalf of the Registrar on the Sixth Issuer
Closing Date.
(b) If the Sixth Issuer is required to deliver Definitive Sixth Issuer
Notes pursuant to the terms of the relevant Global Sixth Issuer Note
and the Sixth Issuer Trust Deed, the Sixth Issuer shall arrange for
Definitive Sixth Issuer Notes in an aggregate principal amount equal to
the Principal Amount Outstanding of the relevant Global Sixth Issuer
Note to be made available to or to the order of the Registrar by the
date falling 30 days after the occurrence of the relevant event as set
out in CLAUSE 3 of the Sixth Issuer Trust Deed. Any Definitive Sixth
Issuer Notes will be in registered form and, in each case, in an
Authorised Denomination. The Sixth Issuer shall also arrange, on
written request by the Registrar, for such Definitive Sixth Issuer
Notes as are required to enable the Registrar to perform its
obligations under CLAUSE 5 To be made available to or to the order of
the Registrar from time to time.
3.3 FACSIMILE SIGNATURES
The Sixth Issuer may use for the purposes of executing any Global Sixth
Issuer Notes or Definitive Sixth Issuer Notes, the facsimile signature
of any person who at the date of this Agreement was duly authorised to
sign the same on behalf of the Sixth Issuer, even if at the time of
issue of such Global Sixth Issuer Note or Definitive Sixth Issuer Note,
such person no longer holds (for whatever reason including death) the
relevant office and any Global Sixth Issuer Notes or Definitive Sixth
Issuer Notes so executed and authenticated will be valid and binding
obligations of the Sixth Issuer. No Global Sixth Issuer Note or
Definitive Sixth Issuer Note shall be valid for any purpose until it
has been authenticated by the Registrar, as the case may be, in
accordance with this Agreement and the Sixth Issuer Trust Deed.
3.4 AVAILABILITY
The Sixth Issuer shall, on or prior to the Sixth Issuer Closing Date,
deliver the Series 3 Class A Sixth Definitive Issuer Notes and each
unauthenticated Global Sixth Issuer Note to or to the order of the
Registrar for authentication in accordance with CLAUSES 3.1 and 3.9.
The Registrar shall, on or about the Sixth Issuer Closing Date,
authenticate and deliver (i) the Series 3 Class A Definitive Sixth
Issuer Notes to the subscribers thereof and (ii) each Global Sixth
Issuer Note:
(a) in the case of Reg S Global Sixth Issuer Notes, to the Common
Depositary of Euroclear and Clearstream, Luxembourg against
receipt from the Common Depositary of confirmation that the
Common Depositary or its nominee is holding the
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relevant Reg S Global Sixth Issuer Note in safe custody for the
account of Euroclear and Clearstream, Luxembourg; and
(b) in the case of Dollar Global Sixth Issuer Notes, to a custodian
for DTC.
The Registrar shall hold in safe custody any unauthenticated Series 3
Class A Definitive Sixth Issuer Notes and Global Sixth Issuer Notes
delivered to it in accordance with this CLAUSE 3.4 and shall ensure
that they are authenticated and delivered only in accordance with this
Agreement and the Sixth Issuer Trust Deed.
3.5 CALCULATION OF INTEREST
The Agent Bank shall perform such duties at its Specified Office as are
set forth in this Agreement and in the Conditions and such other duties
as are reasonably incidental thereto at the request of the Sixth Issuer
or the Note Trustee. Save as hereinafter provided, as soon as
practicable after 11.00 a.m. (London time) in the case of the Sterling
Sixth Issuer Notes and the Dollar Sixth Issuer Notes and 11.00 a.m.
(Brussels time), in the case of the Euro Sixth Issuer Notes, on each
Interest Determination Date, the Agent Bank shall determine the rate of
interest on each class of the Sixth Issuer Notes and the Interest
Amount applicable to the next Interest Period in accordance with the
Conditions and shall carry out all other relevant calculations under
the Conditions. Further, the Agent Bank shall notify promptly by
facsimile transmission, and in any event not later than the fourth
Business Day following each such Interest Determination Date, the Sixth
Issuer, the Note Trustee, the Principal Paying Agent, the Sixth Issuer
Cash Manager and the London Stock Exchange (or such other stock
exchange, competent listing authority and/or quotation system on or by
which the Sixth Issuer Notes are then listed, quoted and/or traded) of
the rate of interest so determined, the Interest Amount payable in
respect of interest for such Interest Period, any Additional Amount
payable in respect of the Series 3 Class A Sixth Issuer Notes (as
notified to it by the Sixth Issuer Cash Manager no later than 11:00
a.m. (London time) on the last day of each Interest Period) and the
Interest Payment Date in respect of such Interest Period specifying to
the Sixth Issuer, the Sixth Issuer Cash Manager and the Note Trustee
the rates upon which the same are based and (where relevant) the names
of the banks quoting such rates provided that the Agent Bank shall make
such determination and calculation in relation to each class of Sixth
Issuer Notes on the basis of CONDITION 4 of the Sixth Issuer Notes.
3.6 PUBLICATION OF RATE OF INTEREST
It shall be the responsibility of the Agent Bank to notify to the
London Stock Exchange and to the relevant class of Noteholders such
rate of interest, any Additional Amount, the Interest Amounts for each
Interest Period and the immediately succeeding Interest Payment Date
described in CLAUSE 3.5 and to publish such rate, Additional Amount and
Interest Amounts in accordance with CONDITIONS 4 and 15.
3.7 LISTING
The Sixth Issuer Notes, on issue, are expected to be listed on the
official list of the United Kingdom Listing Authority and to be
admitted to trading on the London Stock Exchange's market for listed
securities. The Sixth Issuer will advise the Agent Bank and the Note
Trustee in writing if such listing and/or admission to trading is or
are withdrawn or if the Sixth Issuer Notes become listed, quoted and/or
traded on or by any other stock exchange, competent listing authority
and/or quotation system.
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3.8 SAFE CUSTODY
The Registrar shall procure the holding in safe custody of all
unauthenticated Definitive Sixth Issuer Notes delivered to it in
accordance with CLAUSE 3.2(B) and shall ensure that such Definitive
Sixth Issuer Notes are authenticated and delivered only in accordance
with the terms hereof and of the Conditions.
3.9 AUTHENTICATION
The Registrar or its designated agent is authorised and instructed by
the Sixth Issuer to authenticate such Global Sixth Issuer Notes or
Definitive Sixth Issuer Notes as may be required to be authenticated
hereunder by the original signature of any of its officers or any other
person duly authorised for the purpose by the Registrar.
4. DELIVERY OF DEFINITIVE SIXTH ISSUER NOTES; TRANSFERS AND EXCHANGES OF
GLOBAL SIXTH ISSUER NOTES
4.1 DELIVERY OF DEFINITIVE SIXTH ISSUER NOTES
On or after the date for the exchange of any Global Sixth Issuer Note
for Definitive Sixth Issuer Notes in accordance with the Conditions,
the Registrar shall, against surrender of such Global Sixth Issuer Note
authenticate and deliver, or cause to be authenticated and delivered on
its behalf, Definitive Sixth Issuer Notes in accordance with the
Conditions and CLAUSE 5 of the Sixth Issuer Trust Deed provided that in
no circumstances shall the aggregate principal amount of such
Definitive Sixth Issuer Notes exceed the aggregate principal amount of
the relevant Global Sixth Issuer Note.
4.2 DELIVERY OF SERIES 3 CLASS A DEFINITIVE SIXTH ISSUER NOTES
On or after the date for the exchange of the Series 3 Class A
Definitive Sixth Issuer Notes for a Series 3 Class A Global Sixth
Issuer Note in accordance with the Conditions, the Registrar shall,
against surrender of all of the Series 3 Class A Definitive Sixth
Issuer Notes then issued, cancel the registration of the Series 3 Class
A Definitive Sixth Issuer Notes, register and authenticate, or cause to
be registered and authenticated on its behalf, a Series 3 Class A
Global Sixth Issuer Note and deposit, or procure the deposit of, the
Series 3 Class A Global Sixth Issuer Note with the Common Depository
subject to the provisions of Condition 13 and Clause 5 of the Trust
Deed, in exchange for all but not some only of the Series 3 Class A
Definitive Sixth Issuer Notes, provided that in no circumstances shall
the aggregate principal amount of such Series 3 Class A Global Sixth
Issuer Note exceed the aggregate principal amount of the Series 3 Class
A Definitive Sixth Issuer Notes.
4.3 ANNOTATION OF GLOBAL SIXTH ISSUER NOTES
On each occasion on which Definitive Sixth Issuer Notes are so
delivered, the amount of the relevant Global Sixth Issuer Note shall be
reduced by the amount of the Definitive Sixth Issuer Notes so delivered
and the Registrar shall procure that there is noted in the schedule to
the relevant Global Sixth Issuer Note the amount of Definitive Sixth
Issuer Notes so delivered (the PRINCIPAL AMOUNT) and the remaining
Principal Amount Outstanding of the relevant Global Sixth Issuer Note
and shall procure the signature of such notation on its behalf.
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5. REPLACEMENT SIXTH ISSUER NOTES
5.1 DELIVERY OF REPLACEMENTS
The Registrar shall, upon and in accordance with the instructions of
the Sixth Issuer (which instructions may, without limitation, include
such terms as to the payment of expenses and as to evidence, security
and indemnity as the Sixth Issuer may reasonably require) and in the
absence of notice to the Principal Paying Agent, the Registrar or the
Note Trustee that such Sixth Issuer Note has been acquired by a bona
fide purchaser, authenticate and deliver a Global Sixth Issuer Note or
Definitive Sixth Issuer Note as a replacement for any such Global Sixth
Issuer Note or Definitive Sixth Issuer Note (of the same form) which
has been mutilated or defaced or which is alleged to have been
destroyed, stolen or lost provided that, however, the Registrar shall
not deliver any such Global Sixth Issuer Note or Definitive Sixth
Issuer Note as a replacement for any Global Sixth Issuer Note or
Definitive Sixth Issuer Note (of the same form) which has been
mutilated or defaced otherwise than against surrender of the same.
5.2 REPLACEMENTS TO BE NUMBERED
Each replacement Global Sixth Issuer Note or Definitive Sixth Issuer
Note delivered hereunder shall bear a unique serial number.
5.3 CANCELLATION AND DESTRUCTION
The Registrar shall cancel and destroy each mutilated or defaced Global
Sixth Issuer Note or Definitive Sixth Issuer Note surrendered to it and
in respect of which a replacement has been delivered.
5.4 VERIFICATION
The Registrar shall obtain verification, in the case of an allegedly
lost, stolen or destroyed Global Sixth Issuer Note or Definitive Sixth
Issuer Note in respect of which the serial number is known, that such
Global Sixth Issuer Note or Definitive Sixth Issuer Note has not
previously been redeemed or paid. The Registrar shall not issue any
replacement Global Sixth Issuer Note or Definitive Sixth Issuer Note
unless and until the Registrar and the Sixth Issuer agree that the
applicant therefor has:
(a) paid such costs as may be incurred in connection therewith;
(b) furnished it with such evidence and indemnification as the Sixth
Issuer and the Registrar may reasonably require; and
(c) in the case of any mutilated or defaced Global Sixth Issuer Note
or Definitive Sixth Issuer Note, surrendered it to the Registrar.
5.5 NOTIFICATION
The Registrar shall notify the Sixth Issuer of the delivery by it in
accordance herewith of any replacement Global Sixth Issuer Note or
Definitive Sixth Issuer Note, specifying the serial number thereof and
the serial number respectively (if and if known) of the Global Sixth
Issuer Note or Definitive Sixth Issuer Note which it replaces and
confirm (if such be the case) that the Global Sixth Issuer Note or
Definitive Sixth Issuer Note which it replaces has been cancelled or
destroyed and the Registrar shall, in addition, as promptly as is
practicable, enter such details on the Register. Whenever any Global
Sixth Issuer Note or Definitive Sixth
6
Issuer Note for which a replacement Global Sixth Issuer Note or
Definitive Sixth Issuer Note has been issued and of which the serial
number is known is presented to any of the Paying Agents for payment,
the relevant Paying Agent shall immediately send notice thereof to the
Sixth Issuer, the Principal Paying Agent and the Registrar. No payment
shall be made on such cancelled Global Sixth Issuer Note or Definitive
Sixth Issuer Note.
6. PAYMENTS TO THE PRINCIPAL PAYING AGENT
6.1 SIXTH ISSUER TO PAY THE PRINCIPAL PAYING AGENT
In order to provide for the payment of interest and principal in
respect of the Sixth Issuer Notes as the same become due and payable in
accordance with the Conditions and the Sixth Issuer Trust Deed, the
Sixth Issuer shall pay to the Principal Paying Agent or otherwise cause
the Principal Paying Agent to receive an amount which is equal to the
amount of principal and interest then falling due in respect of the
Sixth Issuer Notes.
6.2 PAYMENT BY SIXTH ISSUER
The Sixth Issuer shall, not later than 11.00 a.m. (London time) on each
Interest Payment Date, on which any payment of principal and interest
in respect of the Sixth Issuer Notes becomes due, pay or cause to be
paid to the Principal Paying Agent such amounts in sterling, dollars or
euro, as the case may be, in immediately available funds as may be
required for the purpose of paying principal or interest under the
Sixth Issuer Notes (after taking account of any cash then held by the
Principal Paying Agent and available for that purpose) and such amounts
shall be paid to the credit of suitably designated accounts at such
bank or banks in London for payment to the Noteholders as shall be
notified to the Sixth Issuer by the Principal Paying Agent in writing
no later than two weeks before the first payment is due to be made to
the Noteholders. The Principal Paying Agent shall notify the Sixth
Issuer and/or the Note Trustee in writing, within five Business Days of
any change of those accounts, or any of them, and (i) upon the
bankruptcy, insolvency, winding up or liquidation (other than the
passing of any resolution by any Paying Agent in connection with any
merger, conversion, consolidation, or transfer as contemplated by
CLAUSE 12.11) of the Principal Paying Agent or (ii) upon default being
made by any Paying Agent in the payment of any amounts in respect of
principal or interest in accordance with this Agreement or (iii)
failing payment within the designated periods of prescription specified
in CONDITION 7, the Principal Paying Agent shall hold all payments on
trust for repayment to the Sixth Issuer.
6.3 NOTIFICATION OF PAYMENT BY SIXTH ISSUER
The Sixth Issuer shall procure that the bank effecting payment on its
behalf confirms by tested telex or authenticated SWIFT message by 2.00
p.m. (London time) two Business Days prior to each date on which any
payment is due to be made under CLAUSE 6.2 that it has issued
irrevocable payment instructions for the transfer of the relevant sum
due on that date to the account of the Principal Paying Agent.
6.4 CONFIRMATION BY THE SIXTH ISSUER
(a) The Sixth Issuer will procure that the bank in London making payments
on its behalf as referred to in CLAUSE 6.2 will irrevocably confirm in
writing to the Principal Paying Agent by 11.00 a.m. (London time) on
each Interest Payment Date, as set out in CLAUSE 6.2, that it has
credited such account of the Principal Paying Agent as notified by the
Principal Paying Agent to the Sixth Issuer from time to time, on such
payment date.
7
(b) Not later than two Business Days before making any payment pursuant to
CLAUSE 6.2 in respect of any class of the Sixth Issuer Notes, the Sixth
Issuer shall notify, or procure the notification to, the Principal
Paying Agent and the Note Trustee of the amount of interest or
principal (as the case may be) payable in respect of each class of
Sixth Issuer Notes on the date in question and the apportionment of
such amount as between principal and interest.
(c) Whilst the Sixth Issuer Notes of any class continue to be represented
by Global Sixth Issuer Notes, the Principal Paying Agent shall pay or
cause to be paid all payments of principal or interest (as the case may
be) due in respect of such Sixth Issuer Notes to, or to the order of:
(i) in the case of Reg S Global Sixth Issuer Notes, the Common
Depository of Euroclear and Clearstream, Luxembourg; and
(ii) in the case of Dollar Global Sixth Issuer Notes, the nominee of
DTC,
and shall give notice of all such payments to the Registrar.
All such payments will be distributed without deduction or withholding
for any taxes, duties, assessments or other governmental charges of
whatever nature except as may be required by law. If any such deduction
or withholding is required to be made, then neither the Sixth Issuer
nor any other person will be obliged to pay any additional amounts in
respect thereof.
6.5 EXCLUSION OF LIENS AND INTEREST
The Principal Paying Agent shall:
(a) not exercise any lien, right of set-off or similar claim in
respect of monies received by the Principal Paying Agent in
connection with its activities hereunder;
(b) not be liable to any person for interest thereon; and
(c) not be obliged to hold any funds received by it hereunder in a
segregated account or accounts.
6.6 APPLICATION BY PRINCIPAL PAYING AGENT
The Principal Paying Agent shall apply (or direct or cause application
of) each amount paid to it hereunder in accordance with CLAUSE 7 in
respect of the Global Sixth Issuer Notes and Definitive Sixth Issuer
Notes (if any) and shall not be obliged to repay any such amount other
than as provided herein or unless the claim for the relevant payment
becomes void under the Conditions in which event it shall repay to the
Sixth Issuer such portion of such amount as relates to such payment,
together with the fees applicable thereto (pro rata as to the amount
and time) to the extent already paid pursuant to CLAUSE 10, by paying
the same by credit transfer in sterling, dollars or euro, as the case
may be, to such account with such bank as the Sixth Issuer has by
notice to the Principal Paying Agent specified for the purpose.
6.7 FAILURE TO RECEIVE PAYMENT
The Principal Paying Agent shall as soon as is reasonably practicable
notify the Note Trustee, the Agent Bank, the other Paying Agents and
the Sixth Issuer by facsimile:
(a) if, by 5.00 p.m. (New York City time) on an Interest Payment
Date, the Principal Paying Agent has not received the dollar
deposit required by CLAUSE 6.2 and/or there are not sufficient
funds in dollars available to the Principal Paying Agent to
discharge
8
the amount of the monies payable thereon in accordance with the
Conditions and/or the provisions of the Sixth Issuer Trust Deed
on such Interest Payment Date, and the Principal Paying Agent
will in addition notify the Sixth Issuer by telephone as soon as
reasonably practicable after any Interest Payment Date it has not
received the dollar deposit required by CLAUSE 6.2 and/or as
otherwise described in accordance with this CLAUSE 6.7(A);
(b) if by 5.00 p.m. (London time) and/or 5.00 p.m. (Brussels time) as
appropriate on an Interest Payment Date the Principal Paying
Agent has not received the sterling deposit and/or the euro
deposit required by CLAUSE 6.2 and/or there are not sufficient
funds in sterling or euro, as the case may be, available to the
Principal Paying Agent to discharge the amount of the monies
payable thereon in accordance with the Conditions and/or the
provisions of the Sixth Issuer Trust Deed on such Interest
Payment Date, and the Principal Paying Agent will in addition
notify the Sixth Issuer by telephone if by 11.00 a.m. (London
time) on an Interest Payment Date it has not received the
sterling deposit or euro deposit required by Clause 6.2 and/or as
otherwise described in accordance with this CLAUSE 6.7(B).
7. PAYMENTS TO NOTEHOLDERS
7.1 PAYMENTS IN RESPECT OF GLOBAL SIXTH ISSUER NOTES
Each Paying Agent acting through its Specified Office shall make
payments of interest and principal in respect of the Global Sixth
Issuer Notes in accordance with the Conditions and the Sixth Issuer
Trust Deed provided, however, that:
(a) if any Global Sixth Issuer Note is presented or surrendered for
payment to a Paying Agent and such Paying Agent has delivered a
replacement therefor or has been notified that the same has been
replaced, such Paying Agent shall as soon as is reasonably
practicable notify the Sixth Issuer in writing of such
presentation or surrender and shall not make payment against the
same until it is so instructed by the Sixth Issuer and has
received the amount to be so paid;
(b) each Paying Agent shall cancel each Definitive Sixth Issuer Note
against surrender of which it has made full payment and shall, in
the case of a Paying Agent other than the Principal Paying Agent,
deliver each Definitive Sixth Issuer Note so cancelled by it to
the Registrar;
(c) in the case of payment of interest or principal against
presentation of a Global Sixth Issuer Note, the Registrar shall
note or procure that there is noted on the relevant schedule to
such Global Sixth Issuer Note, the amount of such payment and, in
the case of payment of principal, the remaining Principal Amount
Outstanding of a Global Sixth Issuer Note and shall procure the
signature of such notation on its behalf; and
(d) a Paying Agent shall not be obliged (but shall be entitled) to
make payments of principal or interest if:
(i) in the case of the Principal Paying Agent, it has not
received the full amount of any payment due to it under
CLAUSE 6.1; or
(ii) in the case of any other Paying Agent it is not able to
establish that the Principal Paying Agent has received the
full amount of any payment due to it under CLAUSE 6.
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7.2 PAYMENTS IN RESPECT OF DEFINITIVE SIXTH ISSUER NOTES
The Registrar will, in the case of Definitive Sixth Issuer Notes,
notify the Principal Paying Agent, not later than five days after each
Record Date, whether any Noteholder has elected to receive payments by
transfer to a bank account and, if so, the relevant details of such
bank account. For those Noteholders who have chosen not to receive
payments by transfer to a bank account, the Registrar will notify the
Principal Paying Agent of the address of such Noteholder appearing in
the Register to which cheques should be posted.
7.3 REGISTER
The Principal Paying Agent shall make or shall procure payments of
interest and principal in respect of the Definitive Sixth Issuer Notes
in accordance with the Conditions and the Sixth Issuer Trust Deed by
mailing a dollar cheque drawn on a bank in New York City, in the case
of the Series 1 Sixth Issuer Notes and the Series 2 Sixth Issuer Notes;
or a euro cheque drawn on a bank in London, in the case of the Series 4
Sixth Issuer Notes; or a sterling cheque drawn on a bank in London, in
the case of the Series 3 Sixth Issuer Notes and the Series 5 Sixth
Issuer Notes to the address of the Noteholder appearing in the Register
on the Record Date or, if the Noteholder has elected to do so, by
transfer to a dollar, sterling or euro account, as the case may be.
7.4 NO OBLIGATION TO PAY
No payments in respect of any Definitive Sixth Issuer Notes will be
made on the final date for redemption or, as the case may be, payment,
or such earlier date as the relevant Definitive Sixth Issuer Notes may
become repayable or, as the case may be, payable, in whole unless the
Registrar or any Transfer Agent confirms to the Principal Paying Agent
that such Definitive Sixth Issuer Note has been surrendered to it.
7.5 PARTIAL PAYMENT
(a) The Principal Paying Agent shall not be obliged (but shall be entitled)
to make payments of interest or principal in respect of a Global Sixth
Issuer Note or a Definitive Sixth Issuer Note (as the case may be) if
it has not received the full amount of any payment due to it under
CLAUSE 6.1. If at any time and for any reason the Principal Paying
Agent makes a partial payment in respect of a Global Sixth Issuer Note,
the Registrar shall, in respect of such Global Sixth Issuer Note,
endorse thereon a statement indicating the amount and date of such
payment and in respect of Definitive Sixth Issuer Notes, the Registrar
shall annotate the Register with such details.
(b) (i) If the Sixth Issuer intends to redeem all (but not some only) of
any class of the Sixth Issuer Notes prior to their stated
maturity date pursuant to and in accordance with the terms of
CONDITION 5(D) or (E), it shall give not more than 60 nor less
than 30 days' written notice of such intention to the Note
Trustee and the Noteholders in accordance with the relevant
paragraphs of CONDITION 5 and stating the date on which such
Sixth Issuer Notes are to be redeemed and shall give sufficient
notice to the Principal Paying Agent to enable it to notify the
Noteholders within such prescribed period.
(ii) The Principal Paying Agent shall in accordance with the
Conditions on behalf of and at the expense of the Sixth Issuer
publish the notices required in connection with such redemption.
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(c) In the case of a partial redemption of any class of the Sixth Issuer
Notes in accordance with CONDITION 5(B), the principal amount of the
Sixth Issuer Notes being partially redeemed on an Interest Payment Date
shall be redeemed on a pro rata basis in accordance with CONDITION
5(B).
7.6 EXCLUSION OF LIENS AND COMMISSIONS
No Paying Agent shall exercise any lien, right of set-off or similar
claim against any person to whom it makes any payment under CLAUSE 7.1
or CLAUSE 7.2 in respect thereof, nor shall any commission or expense
be charged by it to any such person in respect thereof.
7.7 REIMBURSEMENT BY PRINCIPAL PAYING AGENT
If a Paying Agent other than the Principal Paying Agent makes any
payment in accordance with CLAUSE 7.1 or CLAUSE 7.2:
(a) it shall notify the Principal Paying Agent of the amount so paid
by it, the certificate or serial number of the Sixth Issuer Notes
against presentation or surrender of which payment of principal
or interest was made; and
(b) subject to, and to the extent of, compliance by the Sixth Issuer
with CLAUSE 6.1 (whether or not at the due time), the Principal
Paying Agent shall pay to such Paying Agent out of the funds
received by the Principal Paying Agent under CLAUSE 6.1, by
credit transfer in sterling, dollars or euro, as the case may be,
and in same day, freely transferable, cleared funds to such
account with such bank in London as such Paying Agent has by
notice to the Principal Paying Agent specified for the purpose,
an amount equal to the amount so paid by such Paying Agent.
7.8 APPROPRIATION BY PRINCIPAL PAYING AGENT
If the Principal Paying Agent makes any payment in accordance with
CLAUSE 7.5(A), it shall be entitled to appropriate for its own account
out of the funds received by it under CLAUSE 6.1 an amount equal to the
amount so paid by it.
7.9 REIMBURSEMENT BY SIXTH ISSUER
If any Paying Agent (which for the avoidance of doubt includes the
Principal Paying Agent) makes a payment in respect of the Sixth Issuer
Notes at a time which the Principal Paying Agent has not received the
full amount of the relevant payment due to it under CLAUSE 6.1 and the
Principal Paying Agent is not able out of the funds received by it
under CLAUSE 6.1 to reimburse such Paying Agent therefor (whether by
payment under CLAUSE 7.7 or appropriation under CLAUSE 7.8), the Sixth
Issuer shall from time to time on written demand pay to the Principal
Paying Agent for account of such Paying Agent:
(a) the amount so paid out by such Paying Agent and not so reimbursed
to it; and
(b) interest on such amount from the date on which such Paying Agent
made such payment until the date of reimbursement of such amount
with proof thereof of such amount,
provided, however, that any payment under PARAGRAPH (A) above shall
satisfy pro tanto the Sixth Issuer's obligations under CLAUSE 6.1.
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7.10 INTEREST
Interest shall accrue for the purpose of CLAUSE 7.9(B) (as well after
as before judgment) on the basis of a year of 365 days and the actual
number of days elapsed and at a rate per annum specified by the
Principal Paying Agent as reflecting its actual cost of funds for the
time being in relation to the unpaid amount.
8. MISCELLANEOUS DUTIES OF THE PRINCIPAL PAYING AGENT, THE REGISTRAR AND
TRANSFER AGENT
8.1 RECORDS
The Registrar shall:
(a) maintain a full and complete record of all Global Sixth Issuer
Notes and Definitive Sixth Issuer Notes and of their redemption,
payment, exchange or cancellation (as the case may be) and of all
replacement Global Sixth Issuer Notes and Definitive Sixth Issuer
Notes issued in substitution for any lost, stolen, mutilated,
defaced or destroyed Global Sixth Issuer Notes or Definitive
Sixth Issuer Notes (as the case may be);
(b) make such records available for inspection at all reasonable
times by the Sixth Issuer, the Paying Agents, the Transfer Agent
and the Note Trustee; and
(c) make copies of this Agreement, the Sixth Issuer Trust Deed, the
Sixth Issuer Deed of Charge, the Master Definitions and
Construction Schedule and the Sixth Issuer Master Definitions and
Construction Schedule available for inspection at its specified
office at all reasonable times.
8.2 INFORMATION FROM PAYING AGENT
The Paying Agents (other than the Principal Paying Agent) shall make
available to the Principal Paying Agent such information as is
reasonably required for the maintenance of the records referred to in
CLAUSE 8.1.
8.3 DEFINITIVE SIXTH ISSUER NOTES IN ISSUE
As soon as practicable (or in any event within five Business Days)
after a request therefor by the Sixth Issuer or the Note Trustee, the
Registrar shall (on the basis of the information maintained in
accordance with CLAUSE 8) notify the Sixth Issuer or the Note Trustee
(as the case may be) in writing of the number of any Definitive Sixth
Issuer Notes against surrender of which payment has been made and of
the number of any Definitive Sixth Issuer Notes which have not yet been
surrendered for payment and the details of all the Sixth Issuer Notes
redeemed and cancelled.
8.4 FORWARDING OF COMMUNICATIONS
The Principal Paying Agent shall promptly forward to the Sixth Issuer
and the Note Trustee a copy of any notice or communication addressed to
the Sixth Issuer by any Noteholder which is received by the Principal
Paying Agent. The Transfer Agent or Registrar shall promptly notify the
Principal Paying Agent in the event that it receives any such notice or
communication and promptly forward such notice or communication to the
Principal Paying Agent.
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8.5 PUBLICATION OF NOTICES
The Principal Paying Agent shall, upon and in accordance with the
instructions, and at the expense of, the Sixth Issuer but not
otherwise, arrange for the publication in accordance with CONDITION 15
of any notice which is to be given to the Noteholders and shall
promptly supply two copies thereof to the Note Trustee and a copy
thereof to each other Paying Agent.
8.6 DESTRUCTION
The Principal Paying Agent may destroy each Definitive Sixth Issuer
Note delivered to or cancelled by it in accordance with CLAUSE 7.1(B),
in which case it shall promptly furnish the Sixth Issuer and the Note
Trustee, with a certificate as to such destruction, specifying the
reason for such destruction and the certificate or serial numbers of
the relevant Definitive Sixth Issuer Note.
8.7 VOTING CERTIFICATES AND BLOCK VOTING INSTRUCTIONS
In the event of a meeting of the Noteholders the Principal Paying Agent
shall, at the request of any Noteholder in accordance with the Sixth
Issuer Trust Deed, issue voting certificates and block voting
instructions in a form and manner which comply with the provisions of
the SCHEDULE 4 to the Sixth Issuer Trust Deed (except that it shall not
be required to issue the same less than 48 hours before the time for
which the meeting or the poll to which the same relates has been
convened or called). The Principal Paying Agent shall keep a full
record of voting certificates and block voting instructions issued by
it and will give to the Sixth Issuer, not less than one Business Day
before the time appointed for any meeting or adjourned meeting, full
particulars of all voting certificates and block voting instructions
issued by it in respect of such meeting or adjourned meeting.
8.8 DUTIES OF THE TRANSFER AGENT
If and to the extent so specified by the Conditions and in accordance
therewith and with the terms of this Agreement, or if otherwise
requested by the Sixth Issuer, the Transfer Agent shall:
(a) on behalf of the Registrar, authenticate Definitive Sixth Issuer
Notes upon any transfer or exchange of interests in a Global
Sixth Issuer Note for Definitive Sixth Issuer Notes;
(b) on behalf of the Registrar, make available forms of transfer,
forms of proxy and any certificates as to beneficial ownership in
respect of the Sixth Issuer Notes, receive requests for the
transfer of such Sixth Issuer Notes, forms of transfer, forms of
proxy, certificates and other evidence, inform the Registrar of
the name and address of the holder of each such Sixth Issuer
Note, the serial numbers of any Definitive Sixth Issuer Notes,
the name and address of the relevant person to be inserted in the
Register, forward each such document to the Registrar and, upon
being informed by the Registrar that the appropriate entries have
been made in the Register and all formalities complied with,
forthwith issue Definitive Sixth Issuer Notes on behalf of the
Registrar representing the relevant Sixth Issuer Notes to be
transferred;
(c) keep the Registrar informed of all transfers and exchanges; and
(d) carry out such other acts as may be necessary to give effect to
the Conditions, this Agreement and the Regulations.
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8.9 AUTHENTICATION AND DELIVERY OF DEFINITIVE SIXTH ISSUER NOTES AND
MAINTENANCE OF REGISTER BY REGISTRAR
The Registrar shall authenticate and it shall deliver, or cause the
Transfer Agent to deliver, any Sixth Issuer Note issued upon transfer
in accordance with the Sixth Issuer Trust Deed and shall so long as any
Definitive Sixth Issuer Notes are outstanding maintain a register in
London, or at such other place as the Note Trustee may approve in
writing, in accordance with the Conditions, the Regulations and this
Agreement. The Register shall show the Principal Amount Outstanding or
total number outstanding, as the case may be, of each Definitive Sixth
Issuer Note, the serial numbers thereof and the respective dates of
issue and all subsequent transfers, cancellations and replacements
thereof and all changes of ownership and the names and addresses of the
holders of such Sixth Issuer Notes. The Registrar shall at all
reasonable times during its office hours make the Register available to
the Sixth Issuer, the Paying Agents and the Transfer Agent or any
person authorised by any of them for inspection and for the taking of
copies thereof or extracts therefrom and the Registrar shall deliver to
such persons all such lists of Noteholders, their addresses and
holdings as they may request.
8.10 TRANSFER OF DEFINITIVE SIXTH ISSUER NOTES
The Registrar shall make available forms of transfer, forms of proxy,
and certificates as to beneficial ownership in respect of the
Definitive Sixth Issuer Notes, receive requests for the transfer of
Definitive Sixth Issuer Notes, forms of transfer, forms of proxy,
certificates and other evidence, effect the necessary entries and
formalities and procure that it or the Transfer Agent on its behalf
endorses the name and address of the transferee on each Definitive
Sixth Issuer Note and delivers the same to the person entitled thereto.
No transfer shall be registered for a period of 15 days immediately
preceding any due date for payment in respect of the Sixth Issuer Notes
or, as the case may be, the due date for redemption, or as the case may
be, payment of any of the relevant Sixth Issuer Notes.
8.11 ADDITIONAL DUTIES
The Registrar shall:
(a) register all transfers of Definitive Sixth Issuer Notes in
accordance with the terms of those Definitive Sixth Issuer Notes,
the Sixth Issuer Trust Deed and the Conditions;
(b) receive any document relating to or affecting the title to any of
the Definitive Sixth Issuer Notes including all forms of
transfer, forms of exchange, probates, letters of administration
and powers of attorney;
(c) maintain proper records of the details of all documents received;
(d) prepare all such lists of the holders of the Definitive Sixth
Issuer Notes as may be required by the Sixth Issuer, any Paying
Agent, the Note Trustee or any person authorised by any of them;
(e) comply with the proper and reasonable requests of the Sixth
Issuer with respect to the maintenance of the Register and give
to the Paying Agents such information as may be reasonably
required by it for the proper performance of its duties;
(f) forthwith, and in any event within three Business Days of the
relevant request (or within such longer period as may be required
to comply with any applicable fiscal or other regulations), upon
receipt by it of, or receipt by it of notification from the
Transfer Agent of delivery to it of, Definitive Sixth Issuer
Notes duly endorsed for
14
transfer in the name of the registered holders or subsequent to
the endorsement of a reduction in nominal amount of a Global
Sixth Issuer Note for exchange into Definitive Sixth Issuer
Notes, authenticate and issue duly dated and completed Definitive
Sixth Issuer Notes and deliver the Definitive Sixth Issuer Notes
in the name of the registered holders at its Specified Office or
(at the risk of the relevant registered holders) send the
Definitive Sixth Issuer Notes to such address as the registered
holders may request; and
(g) carry out such other acts as may reasonably be necessary to give
effect to the Conditions, the Sixth Issuer Trust Deed, this
Agreement and the Regulations. In carrying out its functions the
Registrar shall act in accordance with the terms of this
Agreement, the Sixth Issuer Trust Deed, the Regulations and the
Conditions.
8.12 SUPPLIES OF ADDITIONAL DEFINITIVE SIXTH ISSUER NOTES
The Sixth Issuer will deliver to the Transfer Agent and the Registrar
for the performance of their duties hereunder from time to time so long
as any of the Sixth Issuer Notes are outstanding, sufficient additional
Definitive Sixth Issuer Notes as may be required for the performance of
the duties of the Transfer Agent and the Registrar.
8.13 SAFE CUSTODY OF THE DEFINITIVE SIXTH ISSUER NOTES
Each of the Registrar and the Transfer Agent shall maintain in safe
custody all Definitive Sixth Issuer Notes delivered to and held by it
hereunder and shall ensure such Definitive Sixth Issuer Notes are
issued only in accordance with the Conditions, the Sixth Issuer Trust
Deed and the terms of this Agreement.
8.14 CERTIFICATION OF DEFINITIVE SIXTH ISSUER NOTES HELD
Within five Business Days of any request therefor by the Sixth Issuer
or any of the Paying Agents, so long as any of the Sixth Issuer Notes
are outstanding, the Registrar and the Transfer Agent shall certify to
the Sixth Issuer, the Paying Agents and the Note Trustee the number of
unauthenticated Definitive Sixth Issuer Notes held by it hereunder.
8.15 PROVISION OF INFORMATION
Each of the Transfer Agent and the Registrar will give to the Paying
Agents and, as appropriate, the Registrar or the Transfer Agent such
further information with regard to its activities hereunder as may
reasonably be required by them for the proper carrying out of their
respective duties.
8.16 REGULATIONS FOR THE DUTIES OF THE TRANSFER AGENT AND THE REGISTRAR
In the event that Definitive Sixth Issuer Notes are required to be
issued, the Registrar shall (after consultation with the Sixth Issuer,
the Paying Agents, the Transfer Agent and the Note Trustee) promulgate
reasonable regulations concerning the carrying out of their respective
duties, including the carrying out of transfers and exchanges of
Definitive Sixth Issuer Notes and the forms and evidence to be proved.
All such transfers and exchanges will be made subject to the
Regulations. The initial Regulations are set out in SCHEDULE 2 hereto.
The Regulations may be changed by the Sixth Issuer with the prior
written approval of the Registrar and the Note Trustee, which approval
shall not be unreasonably withheld or delayed. A copy of the current
Regulations will be sent by the Registrar to any holder of a Definitive
Sixth Issuer Note who so requests.
15
8.17 NOTIFICATION OF THE PRINCIPAL AMOUNT OUTSTANDING
The Registrar shall, on the Business Day prior to each Interest Payment
Date notify the Principal Paying Agent, the Sixth Issuer and the Sixth
Issuer Cash Manager of the aggregate Principal Amount Outstanding of
Definitive Sixth Issuer Notes.
9. AGENTS TO ACT FOR NOTE TRUSTEE
9.1 At any time after an Event of Default in respect of the Sixth
Issuer Notes or any of them shall have occurred:
(a) the Principal Paying Agent, the US Paying Agent, the Transfer
Agent and the Registrar shall (where such agents act on behalf
of the Sixth Issuer), if so required by notice in writing
given by the Note Trustee to the Sixth Issuer and the
Principal Paying Agent, the US Paying Agent, the Transfer
Agent and the Registrar:
(i) thereafter act as agents of the Note Trustee under the
terms of the Sixth Issuer Trust Deed on the terms mutatis
mutandis contained herein (save that the Note Trustee's
liability under any provision herein contained for the
remuneration and indemnification of such Agents shall be
limited to the amount for the time being held by the Note
Trustee on the trusts of the Sixth Issuer Trust Deed which
is available to be applied by the Note Trustee for such
purpose) and thereafter hold all Sixth Issuer Notes and all
sums, documents and records held by them in respect of the
Sixth Issuer Notes on behalf of the Note Trustee; and/or
(ii) deliver up all Sixth Issuer Notes and all sums, documents
and records held by them in respect of the Sixth Issuer
Notes to the Note Trustee or as the Note Trustee shall
direct in such notice,
provided that such notice shall be deemed not to apply to any
document or record which the relevant Agent is obliged not to
release by any applicable law or regulation; and/or
(b) the Agent Bank shall, if so required by notice in writing given
by the Note Trustee to the Agent Bank and until such appointment
is terminated by the Note Trustee by notice in writing:
(i) thereafter act as Agent Bank of the Note Trustee in
relation to calculations and other related functions to be
made or performed by, or on behalf of, the Note Trustee
under the terms of the Sixth Issuer Trust Deed mutatis
mutandis on the terms contained herein (save that the Note
Trustee's liability under any provision hereof for the
remuneration and indemnification of the Agent Bank shall be
limited to the amounts for the time being held by the Note
Trustee in respect of principal and interest on the Sixth
Issuer Notes on the trusts of the Sixth Issuer Trust Deed
which is available to be applied by the Note Trustee for
such purposes) and thereafter to hold on behalf of the Note
Trustee all documents and records held by it in respect of
principal and interest on the Sixth Issuer Notes; and/or
(ii) deliver up all documents and records held by it in respect
of principal and interest on the Sixth Issuer Notes to the
Note Trustee or as the Note Trustee shall direct in such
notice,
16
provided that such notice shall be deemed not to apply to any
document or record which the Agent Bank is obliged not to release
by any applicable law or regulation.
9.2 The Note Trustee at any time may, if any Event of Default is remedied
to the reasonable satisfaction of the Note Trustee during any
applicable grace period, by notice in writing to the Sixth Issuer and
the relevant Agents, withdraw any notice given by the Note Trustee
pursuant to CLAUSE 9.1 whereupon such Agents shall act as agents of the
Sixth Issuer in accordance with the terms hereof. The withdrawal of any
notice given by the Note Trustee pursuant to CLAUSE 9.1 shall not
preclude the Note Trustee from issuing any other or further notices
pursuant to that Clause on any subsequent occasion and at any time
after the occurrence of an Event of Default, no notice given by the
Note Trustee pursuant to CLAUSE 9.1 shall be withdrawn except at the
absolute discretion of the Note Trustee.
10. FEES AND EXPENSES
10.1 FEES
The Sixth Issuer shall pay to the Principal Paying Agent during the
period when any of the Sixth Issuer Notes remain outstanding for its
own account and for the account of the other Agents, such fees as may
have been agreed in writing between the Sixth Issuer and the relevant
Agent in respect of the services of the Agents hereunder (together with
any amounts in respect of value added tax or similar tax payable in
respect thereof (against production of a valid tax invoice)). If any
Agent shall cease to be an Agent hereunder, it shall repay to the Sixth
Issuer, the unearned portion, calculated on a pro rata basis of the
said fees.
10.2 FRONT-END EXPENSES
The Sixth Issuer shall after receipt of an account of such expenses
reimburse each Agent for its own account for all out-of-pocket expenses
properly incurred by it in the negotiation, preparation and execution
of this Agreement and for its own account for all out-of-pocket
expenses (including, without limitation, reasonable legal fees and any
reasonable communication, courier, postage and other out-of-pocket
expenses) properly incurred in connection with its services hereunder
(together with any amounts in respect of value added tax (against
production of a valid tax invoice)) provided that such expenses shall
not have been incurred as a result of the Agent's negligence, fraud or
wilful misconduct. The Principal Paying Agent will be responsible for
distributing the remuneration and the relevant expenses of the Agent
Bank, any other Paying Agent, any Transfer Agent and Registrar
appointed hereunder.
10.3 STAMP DUTY, ETC.
The Sixth Issuer shall pay all stamp, registration and other similar
taxes and duties (including any interest and penalties thereon or in
connection therewith) which are payable upon or in connection with the
execution and delivery of this Agreement.
10.4 Save as provided in this CLAUSE 10 or as expressly provided elsewhere
in this Agreement, the Sixth Issuer shall have no liability in respect
of any fees or expenses of any Agents incurred by any of them in
connection with the performance of their respective obligations
hereunder.
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11. TERMS OF APPOINTMENT
11.1 RIGHTS AND POWERS OF THE PAYING AGENTS
(a) The Paying Agents shall (except as ordered by a court of competent
jurisdiction or as required by law or otherwise instructed in writing
by the Sixth Issuer or the Note Trustee) in connection with their
services hereunder (whether or not the relevant Sixth Issuer Note shall
be overdue and notwithstanding any notice to the contrary or writing
shown thereon or any notice of previous loss or theft or of trust or
other interest therein shown on the register) be entitled to treat the
registered holder of any Sixth Issuer Note as the absolute owner of
such Sixth Issuer Note for all purposes and make payments thereon
accordingly provided that where the Registrar has notified the Sixth
Issuer of the presentation or surrender of any Sixth Issuer Note in
accordance with CLAUSE 7.1(A), the relevant Paying Agent shall not make
payment thereon until so instructed by the Sixth Issuer.
(b) Each of the Paying Agents, the Agent Bank, the Registrar and the
Transfer Agent may in connection with its services hereunder:
(i) rely without further investigation or inquiry upon the terms of
any notice, communication or other document reasonably believed
by it to be genuine;
(ii) engage and pay for the advice or services of any lawyers or other
experts whose advice or services it considers necessary, acting
reasonably, and rely upon any written advice so obtained (and
such Agent shall be protected and shall incur no liability as
against the Sixth Issuer in respect of any action taken, or
suffered to be taken in good faith, in accordance with such
advice except to the extent that such liability arises out of any
breach of contract, fraud, wilful default or negligence on the
part of such Agent);
(iii) assume that the terms of each Global Sixth Issuer Note or (as the
case may be) Definitive Sixth Issuer Note as issued are correct;
(iv) refer any question relating to the ownership of any Global Sixth
Issuer Note or Definitive Sixth Issuer Note (as the case may be),
or the adequacy or sufficiency of any evidence supplied in
connection with the replacement, transfer or exchange of any
Global Sixth Issuer Note or Definitive Sixth Issuer Note (as the
case may be) to the Sixth Issuer for determination by the Sixth
Issuer and in good faith conclusively rely upon any determination
so made; and
(v) whenever in the administration of this Agreement it shall deem it
desirable that a matter be proved or established prior to taking,
suffering or omitting any action hereunder, in the absence of bad
faith or negligence or wilful misconduct on its part, accept a
certificate signed by any person duly authorised on behalf of the
Sixth Issuer as to any fact or matter prima facie within the
knowledge of the Sixth Issuer as sufficient evidence thereof.
11.2 PROVISION OF SPECIMEN SIGNATURES
The Sixth Issuer will supply the Principal Paying Agent with the names
and specimen signatures of its Authorised Signatories.
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11.3 EXTENT OF DUTIES
Each Agent shall only be obliged to perform the duties set out herein
and such other duties as are necessarily incidental thereto. No Agent
shall (a) be under any fiduciary duty towards any person other than the
Sixth Issuer, (b) be responsible for or liable in respect of the
authorisation, validity or legality of any Global Sixth Issuer Note or
Definitive Sixth Issuer Note (as the case may be) amount paid by it
hereunder or any act or omission of any other person including, without
limitation, any other Agent (except to the extent that such liability
arises out of any breach of contract, bad faith, wilful misconduct or
negligence on the part of any such Agent), (c) be under any obligation
towards any person other than the Note Trustee, the Sixth Issuer and
the other Agents or (d) assume any relationship of agency or trust for
or with any Noteholder except that funds received by the Paying Agents
for the payment of any sums due in respect of any Sixth Issuer Notes
shall be held by the Paying Agents to the extent required by the Trust
Indenture Act for and on behalf of the relevant Noteholders until the
expiration of the relevant prescription period under the Sixth Issuer
Trust Deed.
11.4 FREEDOM TO TRANSACT
Each Agent may purchase, hold and dispose of beneficial interests in a
Global Sixth Issuer Note or any Definitive Sixth Issuer Note (as the
case may be) and may enter into any transaction (including, without
limitation, any depository, trust or agency transaction) with the Sixth
Issuer or any holders or owners of any Sixth Issuer Notes or with any
other party hereto in the same manner as if it had not been appointed
as the agent of the Sixth Issuer or the Note Trustee in relation to the
Sixth Issuer Notes.
11.5 INDEMNITY
(a) The Sixth Issuer agrees to indemnify each Agent for, and to hold such
Agent harmless against, any loss, liability or expense incurred without
negligence or wilful misconduct on its part, arising out of, or in
connection with, the acceptance and provision of any services by such
Agent under this Agreement, including the costs and expenses (including
legal fees and expenses properly incurred) of defending itself against
any claim in connection with the exercise or performance of any of its
powers or duties under this Agreement.
(b) The Agents shall severally indemnify the Sixth Issuer and, for the
purposes of CLAUSE 9, the Note Trustee against any loss, liability,
reasonable costs and expenses including any claim, action or demand
which the Sixth Issuer or Note Trustee may incur or which may be made
against it as a result of the breach by any Agent of the terms of this
Agreement or its negligence, breach of contract, bad faith or wilful
misconduct or that of its officers or employees including any failure
to obtain and maintain in existence any consent, authorisation,
permission or licence required by it for the assumption, exercise and
performance of its powers and duties hereunder.
(c) No termination of this Agreement shall affect the obligations created
by CLAUSES 11.5(A) and 11.5(B) of the Sixth Issuer and any Agent,
respectively, to indemnify any Agent or, as the case may be, the Sixth
Issuer under the Conditions and to the extent set forth in this
Agreement.
11.6 AGENTS' COMMITMENTS
No provisions of this Agreement shall require any Agent or the Note
Trustee to expend its own funds or assume a financial commitment to a
person not party to this Agreement (other than in the ordinary course
of its business) in the performance of any of its duties hereunder, or
in the exercise of any of its rights or powers hereunder, if it shall
have reasonable grounds
19
for believing that repayment of such funds or adequate indemnity
against such commitment is not reasonably assured to it.
11.7 EXCLUSION OF LIABILITY
Notwithstanding anything in this Agreement to the contrary, in no event
shall any party to this Agreement be liable under or in connection with
this Agreement for indirect, special or consequential losses or damages
of any kind, including lost profits, even if such party has been
advised of the possibility thereof and regardless of the form of action
by which such losses or damages may be claimed.
12. TERMINATION OF APPOINTMENT
12.1 RESIGNATION
Subject to CLAUSE 12.9, the Paying Agents in respect of any or all
classes of Sixth Issuer Notes or the Agent Bank, the Registrar or the
Transfer Agent may resign its appointment upon not less than 60 days'
written notice to the Sixth Issuer and the Note Trustee (with a copy to
the Principal Paying Agent) to that effect, which notice shall expire
not less than 30 days before an Interest Payment Date related to the
affected class of Sixth Issuer Notes.
12.2 REVOCATION
Subject to CLAUSE 12.9, the Sixth Issuer may at any time with the prior
written consent of the Note Trustee revoke its appointment of any Agent
as its agent in relation to the Sixth Issuer Notes by not less than 60
days' written notice to the Note Trustee and such Agent whose
appointment is to be revoked (with a copy to the Principal Paying
Agent), which notice shall expire not less than 30 days before an
Interest Payment Date.
12.3 TERMINATION
If at any time:
(a) a secured party takes possession, or a receiver, manager or other
similar officer is appointed, of the whole or any part of the
undertaking, assets and revenues of any Agent;
(b) any Agent admits in writing its insolvency or inability to pay
its debts as they fall due or suspends payments of its debts;
(c) an administrator or liquidator of any Agent of the whole or any
part of the undertaking, assets and revenues of any Agent is
appointed (or application for any such appointment is made);
(d) any Agent takes any action for a readjustment or deferment of any
of its obligations or makes a general assignment or an
arrangement or composition with or for the benefit of its
creditors or declares a moratorium in respect of any of its
indebtedness;
(e) an order is made or an effective resolution is passed for the
winding up of any Agent; or
(f) any event occurs which has an analogous effect to any of the
foregoing,
20
the Sixth Issuer may with the prior written approval of the Note
Trustee (which approval shall not be unreasonably withheld or delayed)
forthwith terminate without notice the appointment of such Agent and
the remaining Agents and the Sixth Issuer (or the Note Trustee, as
applicable) shall give notice thereof to the Note Trustee and to the
Noteholders in accordance with CONDITION 15. On the occurrence of any
of the above, the relevant Agent shall forthwith notify the Sixth
Issuer.
12.4 ADDITIONAL AND SUCCESSOR AGENTS
The Sixth Issuer may with the prior written approval of the Note
Trustee (such approval not to be unreasonably withheld or delayed):
(a) appoint a Successor Principal Paying Agent or any other Successor
Paying Agent; and/or
(b) appoint a Successor Agent Bank; and/or
(c) appoint one or more additional Paying Agents in respect of any
class of Sixth Issuer Notes; and/or
(d) appoint an alternative Agent Bank in respect of any class of
Sixth Issuer Notes; and/or
(e) appoint an alternative Registrar in respect of any class of Sixth
Issuer Notes; and/or
(f) appoint an alternative Transfer Agent in respect of any class of
Sixth Issuer Notes,
and shall forthwith give notice of any such appointment to the
continuing Agents and the Noteholders.
12.5 AGENT MAY APPOINT SUCCESSOR
If any Agent gives notice of its resignation in accordance with CLAUSE
12.1 and by the tenth day before the expiration of such notice a
Successor Agent has not been duly appointed, such Agent may itself,
following such consultation with the Sixth Issuer as is practicable in
the circumstances and with the prior written approval of the Note
Trustee and the Sixth Issuer (provided such failure to appoint was not
due to default by the Sixth Issuer), appoint as its Successor Agent any
reputable and experienced bank or financial institution and give notice
of such appointment to the Sixth Issuer, the remaining Agents and the
Noteholders.
12.6 RIGHTS OF SUCCESSOR AGENT
Upon the execution by the Sixth Issuer and any Successor Agent of an
instrument effecting the appointment of a Successor Agent, such
Successor Agent shall, without any further act, deed or conveyance,
become vested with all the authority, rights, powers, trusts,
immunities, duties and obligations of its predecessor with like effect
as if originally named as the relevant Agent herein and such
predecessor, upon payment to it of the pro rata proportion of its
administration fee and disbursements then unpaid (if any), shall
thereupon become obliged to transfer, deliver and pay over, and such
Successor Agent shall be entitled to receive, all monies, records and
documents (including any Definitive Sixth Issuer Notes of the relevant
class or classes of Sixth Issuer Notes, if any) held by such
predecessor hereunder.
21
12.7 NOTICE TO NOTEHOLDERS
The Sixth Issuer shall, within 30 days of the revocation of the
appointment of any Agent, the appointment of a new Agent or the
resignation of any Agent, give to the relevant Noteholders written
notice thereof in accordance with CONDITION 15. Any costs incurred in
connection with the publication of the revocation of the appointment of
any Agent or the appointment of any Agent shall be for the Account of
the Sixth Issuer; any such costs incurred in connection with the
resignation of any Agent shall be for the account of the resigning
Agent.
12.8 CHANGE OF SPECIFIED OFFICE
If any Agent shall determine to change its Specified Office (which, in
the case of the Paying Agents, may only be effected within the same
city) it shall give to the Sixth Issuer and the Note Trustee written
notice of such determination giving the address of the new Specified
Office and stating the date on which such change is to take effect,
which date shall not be less than 30 days after the date of such
notice, provided that no such notice shall take effect within the
period of 30 days before or after any Interest Payment Date. The Sixth
Issuer shall, within 40 days of receipt of such notice (unless the
appointment is pursuant to a revocation or termination under CLAUSE
12.2 or CLAUSE 12.3 above on or prior to the date of such change), give
to the Noteholders notice of such change as approved by the Note
Trustee and of the address of the Specified Office in accordance with
CONDITION 15 but the costs of giving such notice shall be borne by such
Agent changing its office and not by the Sixth Issuer.
12.9 LIMITATIONS ON RESIGNATION AND REVOCATION
Notwithstanding CLAUSES 12.1 and 12.2:
(a) if there is only one Paying Agent, no resignation by or
termination of the appointment of the Paying Agent shall take
effect until a new Paying Agent in respect of the affected class
or classes of Sixth Issuer Notes, approved in writing by the Note
Trustee, has been appointed on terms previously approved in
writing by the Note Trustee;
(b) no resignation by or termination of the appointment of any Paying
Agent shall take effect if as a result of such resignation or
termination there would cease to be a Paying Agent in respect of
the affected class or classes of Sixth Issuer Notes having a
Specified Office in London;
(c) no resignation or termination of the appointment of a Paying
Agent shall take effect if as a result of such resignation or
termination there would cease to be a Paying Agent in a Member
State of the European Union that is not obliged to withhold or
deduct tax pursuant to European Council Directive 2003/48/EC or
any other Directive implementing the conclusions of the ECOFIN
Council meeting of 26th-27th November, 2000 or any law
implementing or complying with, or introduced in order to conform
to, such Directive;
(d) no appointment or termination of the appointment of a Paying
Agent shall take effect unless and until notice thereof shall
have been given to the relevant Noteholders in accordance with
the Sixth Issuer Trust Deed and the Conditions;
(e) no resignation by or revocation of the appointment of the Agent
Bank shall take effect until a new Agent Bank having its
Specified Office in London has been appointed;
22
(f) no resignation by or termination of the appointment of the
Registrar shall take effect until a new Registrar having its
Specified Office in London has been appointed; and
(g) the appointment of any additional Paying Agent shall be mutatis
mutandis on the terms and subject to the conditions of this
Agreement and each of the parties hereto shall co-operate fully
to do all such further acts and things and execute any further
documents as may be necessary or desirable to give effect to the
appointment of such Paying Agent.
12.10 EFFECT OF RESIGNATION, REVOCATION AND TERMINATION
Upon any resignation or revocation taking effect under CLAUSE 12.1 or
CLAUSE 12.2 or any termination under CLAUSE 12.3, the relevant Agent
shall:
(a) without prejudice to any accrued liabilities and obligations, be
released and discharged from any further obligations under this
Agreement (save that it shall remain entitled to the benefit of,
and subject to, CLAUSES 10, 11 and 12);
(b) repay to the Sixth Issuer such part of any fee paid to it in
accordance with CLAUSE 10.1 as shall relate to any period
thereafter;
(c) deliver to the Sixth Issuer and to its Successor Agent a copy,
certified as true and up-to-date by an officer of such Agent, of
the records maintained by it pursuant to this Agreement;
(d) forthwith transfer all monies and papers (including any unissued
Definitive Sixth Issuer Notes held by it hereunder) to its
successor in that capacity and provide reasonable assistance to
its successor for the discharge by it of its duties and
responsibilities hereunder; and
(e) in the case of a Paying Agent, pay to the Successor Paying Agent
any amount held by it for payment of principal or interest in
respect of the relevant Sixth Issuer Notes.
12.11 MERGER
Any legal entity into which any Agent is merged or converted or any
legal entity resulting from any merger or conversion to which such
Agent is a party shall, to the extent permitted by applicable law, be
the successor to such Agent without any further formality, whereupon
the Sixth Issuer, the Note Trustee, the other Agents and such successor
shall acquire and become subject to the same rights and obligations
between themselves as if they had entered into an agreement in the form
mutatis mutandis of this Agreement. Written notice of any such merger
or conversion shall forthwith be given by such successor to the Sixth
Issuer, the Note Trustee and the other Agents.
13. NON-PETITION
(a) Each of the Agents and the Note Trustee, in relation to any fees, costs
and expenses payable to the Note Trustee but without prejudice to the
rights of the Note Trustee under and the provisions of, the Sixth
Issuer Deed of Charge, undertakes to the Sixth Issuer that until one
year and one day has elapsed since the last day on which the Sixth
Issuer has discharged all of its obligations in relation to all the
Sixth Issuer Notes, none of them will petition or commence proceedings
for the administration (including, for the avoidance of doubt, the
filing of documents with the court or the service of a notice of
intention to appoint an administrator) or winding up of the Sixth
Issuer (nor join any person in such proceedings or
23
commencement of proceedings) nor commence any legal proceedings against
the Sixth Issuer.
(b) Each of the Agents and the Note Trustee shall have recourse only to the
Sixth Issuer Charged Property subject always to the charges set out in
the Sixth Issuer Deed of Charge and the priority of payments set out
therein. Upon final realisation of the Sixth Issuer Charged Property,
none of the Agents and the Note Trustee or any person acting on its
behalf shall be entitled to take any further steps against the Sixth
Issuer to recover any sums due to each of the Agents and the Note
Trustee but still unpaid and all claims in respect of such sums due but
still unpaid shall be extinguished.
(c) Each of the Agents hereby undertakes to and agrees with the
Sixth Issuer and the Note Trustee that:
(i) only the Note Trustee may enforce the security created in favour
of the Note Trustee by the Sixth Issuer Deed of Charge in
accordance with its provisions; and
(ii) it will not in relation to the matters contemplated in this
Agreement take any steps for the purpose of recovering any sums
due under this Agreement or enforcing any rights arising out of
this Agreement or institute against the Sixth Issuer or join any
other person in instituting against the Sixth Issuer any winding
up, arrangement, reorganisation, liquidation, bankruptcy,
insolvency or other proceedings under any similar law for a
period of one year and one day after all the Sixth Issuer Notes
issued by the Sixth Issuer have been redeemed.
(d) Notwithstanding any other provisions of this Agreement, each of the
Agents hereby agrees to be bound by the provisions of the Sixth Issuer
Deed of Charge and in particular confirms that no sum due under the
Sixth Issuer Deed of Charge will be due and payable by the Sixth Issuer
except in accordance with the Sixth Issuer Deed of Charge, unless and
until all sums thereby required to be paid in priority thereto have
been paid or discharged in full and agrees that the Sixth Issuer Deed
of Charge will prevail if and to the extent it is inconsistent with
this CLAUSE 13.
(e) Each of the Agents hereby undertakes with the Note Trustee and the
Sixth Issuer that if, whether in the liquidation of the Sixth Issuer or
otherwise (and notwithstanding the provisions of this CLAUSE 13), any
payment is made to or amount recovered by any Agent other than in
accordance with or the Sixth Issuer Deed of Charge, the amount so paid
or recovered shall be paid by such Agent to the Note Trustee; provided
however that this CLAUSE 13 shall have effect only to the extent it
does not create and is not deemed to create or constitute a Security
Interest.
14. ASSIGNMENT
14.1 ASSIGNMENT BY THE SIXTH ISSUER
The Sixth Issuer may assign its rights hereunder without consent
subject to and in accordance with the terms of the Sixth Issuer Deed of
Charge.
14.2 NO ASSIGNMENT BY AGENTS
The Agents may not assign or transfer any of their respective rights
and obligations under this Agreement without the prior written consent
of the Sixth Issuer and the Note Trustee, such consent not to be
unreasonably withheld or delayed.
24
15. TIME
Any date or period specified herein may be postponed or extended by
mutual agreement among the parties but, as regards any date or period
originally fixed or so postponed or extended, time shall be of the
essence.
16. NOTICES AND DEMANDS
16.1 SERVICE OF NOTICES
Any notice, communication or demand made under or in connection with
this Agreement shall be in writing and shall be delivered personally,
or by post, fax or cable to the addresses given in CLAUSE 16.2 or at
such other address as the recipient may have notified to the other
party in writing. Proof of posting or despatch of any notice or
communication shall be deemed to be proof of receipt:
(a) in the case of a letter, on the third business day after posting;
and
(b) in the case of a facsimile on the business day of despatch.
16.2 ADDRESS
The addresses referred to in this CLAUSE 16.2 are as follows:
(a) in the case of the Sixth Issuer: to Permanent Financing (No. 6)
PLC, Blackwell House, Guildhall Yard, London EC2V 5AE (facsimile
number +44 (0) 20 7556 0975) for the attention of the Directors
with a copy to Halifax plc, Trinity Road (LP/3/3/SEC), Halifax,
West Yorkshire HX1 2RG (facsimile number +44 (0) 113 235 7511)
for the attention of the Head of Mortgage Securitisation;
(b) in the case of the Principal Paying Agent: to Citibank, N.A.,
London Branch, 5 Carmelite Street, London EC4Y 0PA (facsimile
number +44 (0) 20 7508 3878) for the attention of Agency and
Trust;
(c) in the case of the Agent Bank: to Citibank N.A., London Branch, 5
Carmelite Street, London EC4Y 0PA (facsimile number +44 (0) 20
7508 3878) for the attention of Agency and Trust;
(d) in the case of the US Paying Agent: to Citibank, N.A., New York
Branch, 14th Floor, 388 Greenwich Street, New York, New York
10013 (facsimile number +1 (212) 657 3862) for the attention of
Agency and Trust;
(e) in the case of the Registrar, to Citibank: N.A., London Branch, 5
Carmelite Street, London EC4Y 0PA (facsimile number +44 (0) 20
7508 3878) for the attention of Agency and Trust;
(f) in the case of the Transfer Agent: to Citibank, N.A., London
Branch, 5 Carmelite Street, London EC4Y 0PA (facsimile number +44
(0) 20 7508 3878) for the attention of Agency and Trust;
(g) in the case of the Note Trustee: to The Bank of New York, 48th
Floor, One Canada Square, London E14 5AL, (facsimile number +44
(0) 20 7964 6399) for the attention of Global Structured Finance
- Corporate Trust;
25
(h) in the case of Moody's: to Moody's Investors Service, 2 Minster
Court, Mincing Lane, London EC3R 7XB (facsimile number +44 (0) 20
7772 5400) for the attention of Asset Backed Finance;
(i) in the case of S&P: to Standard & Poor's, Garden House, 18
Finsbury Circus, London EC2M 7BP (facsimile number +44 (0) 20
7826 3598) for the attention of the Structured Finance
Surveillance Group; and
(j) in the case of Fitch: to Fitch Ratings Limited, Eldon House, 2
Eldon Street, London EC2M 7UA (facsimile number +44 (0) 20 7417
6262) for the attention of European Structured Finance,
or to such other address or facsimile number or for the attention of
such other person or entity as may from time to time be notified by any
party to the others by written notice in accordance with the provisions
of this CLAUSE 16.
17. MISCELLANEOUS
17.1 COUNTERPARTS
This Agreement may be executed in any number of counterparts each of
which, when executed and delivered, shall constitute an original, but
all the counterparts shall together constitute but one and the same
instrument Provided, however, that this Agreement shall have no force
or effect until it is executed by the last party to execute the same
and shall be deemed to have been executed and delivered in the place
where such last party executed this Agreement.
17.2 AMENDMENTS
This Agreement may be amended by the parties hereto, without the
consent of any Noteholder, for the purpose of curing any ambiguity or
of curing, correcting or supplementing any defective provision
contained herein or in any manner which the parties may agree is
necessary or desirable, provided that such amendment shall not be
inconsistent with the Conditions and, in the Note Trustee's sole
discretion, shall not be materially prejudicial to the Noteholders of
any class.
18. EXCLUSION OF THIRD PARTY RIGHTS
A person who is not a party to this Agreement has no right under the
Contracts (Rights of Third Parties) Act 1999 to enforce any term of
this Agreement, but this does not affect any right or remedy of a third
party which exists or is available apart from that Act.
19. GOVERNING LAW
19.1 GOVERNING LAW
This Agreement is governed by, and shall be construed in accordance
with, English law.
19.2 JURISDICTION
(a) The Agents irrevocably agree for the benefit of the Sixth Issuer and
the Note Trustee that the courts of England are to have jurisdiction to
settle any dispute which may arise out of or in connection with this
Agreement and that accordingly any suit, action or proceedings arising
26
out of or in connection with this Agreement (together referred to as
PROCEEDINGS) may be brought in the courts of England.
(b) The Agents irrevocably and unconditionally waive and agree not to raise
any objection which they may have now or subsequently to the laying of
the venue of any Proceedings in the courts of England and any claim
that any Proceedings have been brought in an inconvenient forum and
further irrevocably and unconditionally agrees that a judgement in any
Proceedings brought in the courts of England shall be conclusive and
binding upon the Agents and may be enforced in the courts of any other
jurisdiction.
(c) Nothing contained in this Clause shall limit any right to take
Proceedings against any party to this Agreement in any other court of
competent jurisdiction, nor shall the taking of Proceedings in one or
more jurisdictions preclude the taking of Proceedings in any other
jurisdiction, whether concurrently or not.
(d) The US Paying Agent irrevocably and unconditionally appoints the
Principal Paying Agent at its registered office for the time being as
its agent for service of process in England in respect of any
Proceedings and undertakes that in the event of it ceasing so to act it
will appoint another person with a registered office in London as its
agent for service of process.
(e) The Paying Agents:
(i) agree to procure that, so long as any of the Sixth Issuer Notes
remains liable to prescription, there shall be in force an
appointment of such a person approved by the Note Trustee with an
office in London with authority to accept service as aforesaid;
(ii) agree that failure by any such person to give notice of such
service of process to the relevant Paying Agent shall not impair
the validity of such service or of any judgement based thereon;
(iii) consent to the service of process in respect of any Proceedings
by the airmailing of copies, postage prepaid, to the relevant
Paying Agent in accordance with CLAUSE 16; and
(iv) agree that nothing in this Agreement shall affect the right to
serve process in any other manner permitted by law.
19.3 APPROPRIATE FORUM
Each of the parties hereto irrevocably waives any objection which it
might now or hereafter have to the courts of England being nominated as
the forum to hear and determine any Proceedings and to settle any
disputes, and agrees not to claim that any such court is not a
convenient or appropriate forum.
19.4 NON-EXCLUSIVITY
The submission to the jurisdiction of the courts of England shall not
(and shall not be construed so as to) limit the right of the parties or
any of them to take Proceedings in any other court of competent
jurisdiction, nor shall the taking of Proceedings in any one or more
jurisdictions preclude the taking of Proceedings in any other
jurisdiction (whether concurrently or not) if and to the extent
permitted by law.
27
20. EXCLUSION OF LIABILITY
The Note Trustee is a party to this Agreement only to receive the
benefit of the provisions in this Agreement and has no liability under
this Agreement.
IN WITNESS WHEREOF the parties hereto have executed this Agreement on the date
first mentioned above.
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SCHEDULE 1
SPECIFIED OFFICES OF THE AGENTS
THE PRINCIPAL PAYING AGENT
5 Carmelite Street
London
EC4Y 0PA
THE US PAYING AGENT
14th Floor
388 Greenwich Street
New York, NY 10013
THE AGENT BANK
5 Carmelite Street
London
EC4Y 0PA
THE REGISTRAR
5 Carmelite Street
London
EC4Y 0PA
THE TRANSFER AGENT
5 Carmelite Street
London
EC4Y 0PA
29
SCHEDULE 2
REGULATIONS CONCERNING THE TRANSFER, EXCHANGE AND
REGISTRATION OF THE REGISTERED DEFINITIVE SIXTH ISSUER NOTES
1. In this Schedule, any reference to SIXTH ISSUER NOTE or SIXTH ISSUER
NOTES shall be construed as a reference to a Definitive Sixth Issuer
Note in registered form. The Sixth Issuer Notes are in Authorised
Denominations.
2. The Series 3 Class A Definitive Sixth Issuer Notes issued on the Sixth
Issuer Closing Date may be exchanged for a Series 3 Class A Global
Sixth Issuer Note in the circumstances and in the manner set forth in
the Conditions, the Sixth Issuer Paying Agent and Agent Bank Agreement
and Clause 5 of the Sixth Issuer Trust Deed.
3. Subject to paragraph 7 below, a Sixth Issuer Note may be transferred by
execution of the relevant form of transfer under the hand of the
transferor or, where the transferor is a corporation, under its common
seal or under the hand of two of its officers duly authorised in
writing. Where the form of transfer is executed by an attorney or, in
the case of a corporation, under seal or under the hand of two of its
officers duly authorised in writing, a copy of the relevant power of
attorney certified by a financial institution in good standing or a
notary public or in such other manner as the Registrar may require or,
as the case may be, copies certified in the manner aforesaid of the
documents authorising such officers to sign and witness the affixing of
the seal must be delivered with the form of transfer. In this Schedule,
TRANSFEROR shall, where the context permits or requires, include joint
transferors and shall be construed accordingly.
4. Each Sixth Issuer Note to be transferred or exchanged must be
surrendered for registration, together with a duly completed and
executed form of transfer (including any certification as to compliance
with restrictions on transfer included in such form of transfer) at the
Specified Office of the Paying Agents, the Registrar or the Transfer
Agent, together with such evidence as the Paying Agents, the Registrar
or the Transfer Agent may reasonably require to prove the title of the
transferor and the authority of the persons who have executed the form
of transfer. The signature of the person effecting a transfer or
exchange of a Sixth Issuer Note shall conform to any list of duly
authorised specimen signatures supplied by the holder of such Sixth
Issuer Note or be certified by a financial institution in good
standing, notary public or in such other manner as the Paying Agents,
the Registrar or the Transfer Agent may require.
5. No Noteholder may require the transfer of a Sixth Issuer Note to be
registered during the period of 15 calendar days ending on an Interest
Payment Date in respect of such Sixth Issuer Note.
6. The executors or administration of a deceased holder of any Sixth
Issuer Notes (not being one of several joint holders) and, in the case
of the death of one or more of several joint holders, the survivor or
survivors of such joint holders, shall be the only persons recognised
by the Sixth Issuer as having any title to such Sixth Issuer Notes.
7. Any person becoming entitled to any Sixth Issuer Notes in consequence
of the death or bankruptcy of the holder of such Sixth Issuer Notes
may, upon producing such evidence that he holds the position in respect
of which he proposes to act under this paragraph or of his title as the
Paying Agents, the Registrar or the Transfer Agent shall require
(including legal opinions), become registered himself as the holder of
such Sixth Issuer Notes or, subject to the provisions of these
Regulations, the Sixth Issuer Notes and the relevant Conditions as to
transfer, may transfer such Sixth Issuer Notes. The Sixth Issuer, the
Transfer Agent, the
30
Registrar and the Paying Agents shall be at liberty to retain any
amount payable upon the Sixth Issuer Notes to which any person is so
entitled until such person shall be registered as aforesaid or shall
duly transfer the relevant Sixth Issuer Notes.
8. Unless otherwise required by him and agreed by the Sixth Issuer, the
holder of any Sixth Issuer Notes shall be entitled to receive only one
Sixth Issuer Note in respect of his holding.
9. The joint holders of any Sixth Issuer Note shall be entitled to
one Sixth Issuer Note only in respect of their joint holding which
shall, except where they otherwise direct, be delivered to the joint
holder whose name appears first in the Register in respect of the joint
holding.
10. Where there is more than one transferee (to hold other than as joint
holders), separate forms of transfer (obtainable from the specified
office of a Paying Agent, the Registrar or the Transfer Agent) must be
completed in respect of each new holding.
11. Where a holder of Sixth Issuer Notes has transferred part only of his
holding comprised therein, there shall be delivered to him a new Sixth
Issuer Note in respect of the balance of such holding.
12. The Sixth Issuer, the Transfer Agent, a Paying Agent and the Registrar
shall, save in the case of the issue of replacement Sixth Issuer Notes
pursuant to the Conditions, make no charge to the holders for the
registration of any holding of Sixth Issuer Notes or any transfer
thereof or for the issue of any Sixth Issuer Notes or for the delivery
thereof at the Specified Office of the Transfer Agent, such Paying
Agent or the Registrar or by uninsured post to the address specified by
the holder, but such registration, transfer, issue or delivery shall be
effected against such indemnity from the holder or the transferee
thereof as the Paying Agents, the Registrar or the Transfer Agent may
require in respect of any tax or other duty of whatever nature which
may be levied or imposed in connection with such registration,
transfer, issue or delivery.
13. Provided a transfer of a Sixth Issuer Note is duly made in accordance
with all applicable requirements and restrictions upon transfer and the
Sixth Issuer Note(s) transferred are presented to the Transfer Agent
and/or a Paying Agent in accordance with the Sixth Issuer Paying Agent
and Agent Bank Agreement and these Regulations and subject to
unforeseen circumstances beyond the control of the Transfer Agent, a
Paying Agent or the Registrar arising, such Transfer Agent, Paying
Agent and the Registrar will, within five business days of the request
for transfer being duly made, deliver at its Specified Office or
despatch to the transferee by uninsured post (at the request and risk
of the transferee) to such address as the transferee entitled to the
Sixth Issuer Notes may have specified, a Sixth Issuer Note in respect
of which entries have been made in the Register, all formalities
complied with and the name of the transferee completed on the Sixth
Issuer Note by or on behalf of the Registrar; and, for the purposes of
this paragraph, BUSINESS DAY means a day (other than a Saturday or a
Sunday) on which commercial banks are open for business (including
dealings in foreign currencies) in the cities in which the Paying
Agents, the Registrar and the Transfer Agent have their respective
Specified Office.
31
SIGNATORIES
SIXTH ISSUER
SIGNED by )
for and on behalf of )
PERMANENT FINANCING (NO. 6) PLC ) .......................................
PRINCIPAL PAYING AGENT
SIGNED by )
for and on behalf of )
CITIBANK, N.A. LONDON BRANCH ) .......................................
AGENT BANK
SIGNED by )
for and on behalf of )
CITIBANK, N.A. LONDON BRANCH ) .......................................
US PAYING AGENT
SIGNED by )
for and on behalf of )
CITIBANK, N.A. NEW YORK BRANCH ) .......................................
REGISTRAR
SIGNED by )
for and on behalf of )
CITIBANK, N.A. LONDON BRANCH ) .......................................
TRANSFER AGENT
SIGNED by )
for and on behalf of )
CITIBANK, N.A. LONDON BRANCH ) .......................................
NOTE TRUSTEE
SIGNED by )
for and on behalf of )
THE BANK OF NEW YORK ) .......................................
32